The conservative Justices want to take up a teacher/coach speech issue

Some Justices on the Supreme Court periodically signal to the legal community what legal issues they want to take up. They sometimes do this by issuing a brief ruling in connection with the denial of certiorari, announcing that while the Court is not taking this particular case, it remains open to hearing that issue in another case that would present a more appropriate vehicle for that issue. This time, the issue involves the speech rights of public employees.

The case is Kennedy v. Bremerton School District, issued on January 22. The Court as a whole decided not to hear the case. But Justices Alito, Thomas, Gorsuch and Kavanagh issued a statement in connection with the denial of certiorari. These Justices want to hear this issue. The plaintiff says he lost his job as a football coach at a public high school because he prayed on the field following a football game in front of the audience. The superintendent of schools said the public prayer ritual would lead a reasonable observer to think the district was endorsing religion, which would violate the Establishment Clause of the First Amendment, which requires the separation of church and state. Kennedy argued the termination of his employment actually violated the free speech clause of the First Amendment.

So we have competing clauses in the First Amendment at stake here. The Court did not take on this case, Alito says, because the issues are too fact-specific, and the lower courts can resolve those issues before the Supreme Court takes on the case.

Alito says this case raises an important issue because it implicates the Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds a public employee does not have speech rights if his speech was uttered pursuant to his official job duties. "According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report to work to the moment they depart, provided they are within the eyesight of students." Under this interpretation, teachers cannot even bow in prayer during a lunch break if students can see them. Alito is also concerned that the Ninth Circuit's ruling can be understood to mean that "a coach's duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith -- even when the coach is plainly not on duty." He adds, "The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable."